Court Gives Tennessee Permission to Criminalize Certain Abortion Procedures

Court Gives Tennessee Permission to Criminalize Certain Abortion Procedures
Photo:Tim Sloan / AFP (Getty Images)

A federal appeals court has ruled that Tennessee can begin enforcing its ban on abortions based on a prenatal diagnosis of Down syndrome, or the race and gender of the fetus.

The ban was part of a larger piece of anti-abortion legislation that passed into law earlier this year, which included a measure to ban abortion at six weeks. A lower court immediately stopped the legislation from going into effect, and the six-week ban—a blatant violation of Roe v. Wade—will continue to be blocked as the state argues the case in court.

But in the meantime, people seeking and providing abortions in the state will now be subject to what’s known as a “reason ban,” a term that describes attempts to limit abortion based on a patient’s reason for seeking one—or, more often, their suspected reason.

Under the ban, providers who perform abortions on patients knowing that their decision was based on the fetus’s Down syndrome diagnosis can be sentenced to up to 15 years in jail, according to CNN.

As Guttmacher Institute explained in a January guide to understanding reason bans, these attacks on abortion rights can perpetuate racist tropes and encourage providers to question the reproductive decisions of women of color in particular. Race-selective abortion bans, for example, “are based on the idea that women of color are coerced into abortions or are complicit in a ‘genocide’ against their own community,” Guttmacher says. “There is no evidence that women of color seek abortions on the basis of race or that a ban on race-selective abortions would decrease abortions among this group.”

Similarly, sex-selective bans often draw on “limited and inconclusive evidence” that suggest abortions based on the fetus’s sex are practiced in Asian communities.

Abortion opponents, however, tend to make Down syndrome the focal point of these bans in attempts to portray themselves as heroic disability-rights advocates. Anti-choice lawmakers and activists have used the rhetoric of this movement—invoking discrimination or even eugenics—to make Americans believe this issue is urgent and widespread, and to convince courts that it holds up to legal scrutiny, even though it violates patients’ constitutional right to end a pregnancy before fetal viability.

But it’s not difficult to see the legislation for what it is. After all, the so-called “pro-life” camp has never been terribly interested in policies that would improve the lives of children with disabilities or provide parents with the resources to care for them.

Instead, the Tennessee law asks for providers to interrogate their patients, and try to evaluate whether they can legally provide them with access to a basic healthcare procedure.

“These bans are just another way anti-abortion politicians are attempting to limit the constitutional right to abortion care and to create stigma,” Nancy Northup, the president of the Center for Reproductive Rights, said in a statement. “Decisions about whether and when to continue or to end a pregnancy are best made by the individual and their family.”

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